09 -29 59 -ag

Chen v. Holder BIA Gordon-Ur

uak pa,IJ A079 190 078 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERA L RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 26 day of January, two thousand eleven. th 5 6 PRESENT: 7 REENA RAGGI, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 Circuit Judges . 11

_____________________________________ 12 13 GOUYONG CHEN, a.k.a. GUO YONG CHEN, 14 Petitioner , 15 16 v. 09-2959-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL 20 Respondent . 21

______________________________________ 22 23 FOR PETITIONER: Oleh R. Tustaniwsky, Hualian Law 24 Offices, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General, Civil Division; Terri J. 28 Scadron, Assistant Director; Manuel 29 A. Palau, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C. 332 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Gouyong Chen, a native and citizen of China, 6 seeks review of a June 16, 2009 order of the BIA: (1) 7 reversing the August 22, 2007 decision of Immigration Judge 8 (“IJ”) Vivienne E. Gordon-Uruakpa granting Chen’s 9 application for asylum; and (2) denying Chen’s application 1 0 for asylum, withholding of removal, and relief under the 1 1 Convention Against Torture (“CAT”). In re Gouyong Chen , No. 1 2 A079 190 078 (B.I.A. June 16, 2009), rev’g No. A079 190 078 1 3 (Immig. Ct. N.Y. City Aug. 22, 2007). We assume the 1 4 parties’ familiarity with the underlying facts and 1 5 procedural history in this case. 1 6 Under the circumstances of this case, we review only 1 7 the decision of the BIA. See Yan Chen v. Gonzales , 417 F.3d 1 8 268, 271 (2d Cir. 2005). The applicable standards of review 1 9 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian 2 0 Hui Shao v. Mukasey , 546 F.3d 138, 157-58 (2d Cir. 2008); 2 1 Salimatou Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008). 2 2 Chen’s argument that he is eligible for asylum based3 1 solely on his wife’s involuntary abortion and sterilization 2 is foreclosed by our decision in Shi Liang Lin v. U.S. Dep’t 3 of Justice , 494 F.3d 296, 301 (2d Cir. 2007) ( en banc ). 4 Moreover, the BIA did not err in concluding that Chen’s 5 treatment for “other resistance” to his wife’s 1995 6 involuntary abortion did not rise to the level of 7 persecution. See8 U.S.C. § 1101(a)(42); see also 8 Ivanishvili v. U.S. Dep’t of Justice , 433 F.3d 332, 340-41 9 (2d Cir. 2006) (collecting decisions discussing definition 1 0 of persecution). Because this defect necessarily also 1 1 defeats Chen’s CAT claim based on the same factual 1 2 predicate, see Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 1 3 2006), the BIA did not err in failing separately to evaluate 1 4 that claim. 1 5 Finally, we identify no error in the BIA’s 1 6 determination that Chen failed to establish a well-founded 1 7 fear of persecution based on his illegal departure from 1 8 China. See Qun Yang v. McElroy , 277 F.3d 158, 163 n.5 (2d 1 9 Cir. 2002) (finding that the possibility that an alien will 2 0 be prosecuted under a generally applicable statute does not, 2 1 by itself, demonstrate that the alien has a well-founded 2 2 fear of persecution on a protected ground).4

For the foregoing reasons, the petition for review is 1 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 1 0 Catherine O’Hagan Wolfe, Clerk 11 1 2